Copyright workshop

On 16 May 2019, a workshop on copyright in public relations was held for EMU staff. The workshop resulted from the cooperation between the ITM and the Central Custody of the EMU.

The background is the planned digitization of the extensive scientific university collections. These include both the university’s art holdings and collections from departments such as religious studies or geology. The Central Custody of the EMU is responsible for the administration of these various collections. The broad spectrum of tasks of the Custody includes the digitization of the exhibits. If the digitized collections are also to be made publicly accessible on the EMU website, various copyright issues arise: Are the objects copyright-protected works? How does the granting of rights in an employment or service relationship work? Who has the right to the digital copies of public domain works?

Marten Tiessen, as a member of the ITM staff, clarified these and other questions by first giving an overview of the basic principles of copyright law and then going into the Custody’s concrete plans. The workshop was attended by staff members of the EMU, each of whom is responsible for the respective collection in their respective department. In keeping with the diversity of the collections, the participants also brought with them a large number of copyright issues from their professional practice, which were also productively discussed in the workshop.

Dr. Münker: a lecture on unfair competition law

On May 28, 2019, Dr. Reiner Münker (General Manager of the German Competition Authority and head of the German National Group LIDC) gave an exciting and well attended lecture on current developments in competition law at the ITM.

Dr. Münker studied law at the Justus-Liebig-University in Gießen and completed his legal clerkship in Frankfurt a. M. and Brussels. His doctorate was entitled “Copyright approval requirements for digital sampling”. Today, he is a managing member of the executive committee of the competition headquarters in Bad Homburg. We are also pleased that he will be offering a lecture on the fundamentals of advertising law at the EMU starting in the winter semester 2019/2020, which will expand the portfolio of the ITM focus area.

After a short introduction on the development of the Competition Center, Dr. Münker described the main tasks of the Competition Center as four pillars. In particular, it serves the enforcement of the law, advising its members in the area of the Unfair Competition Act, providing information and, finally, it is even active in an advisory capacity in the area of legislation. The law on unfair competition is constantly being developed in today’s age, which is why the expert advice of the staff of the Competition Authority is in particular demand.

Dr. Münker then dealt with numerous current cases. At the beginning he presented the BGH ruling of 19 April 2018 on AdBlock Plus and explained at this point why the BGH – in contrast to the OLG Cologne – does not consider this business model to be anti-competitive. According to this ruling, there is no undue influence and no anticompetitive impediment. Rather, AdBlock Plus is a marketable service which does not aim to deprive the user of advertising revenue.

Dr. Münker then addressed the highly topical phenomenon of influencers. While just a few years ago products were still being advertised on TV by celebrities such as Thomas Gottschalk or George Clooney, the advertising market today is increasingly shifting to social platforms such as Instagram or YouTube. This would enable new target groups to be reached and product sales to be increased more effectively than ever before. For an advertising mail, an influencer with approx. 1 million followers receives up to 10,000 dollars. But the Internet is not a lawless space. UWG, TMG and RStV also apply here, which increasingly leads to legal disputes. Numerous court decisions (including OLG Celle v. 08.06.2017; KG Berlin v. 08.01.2019; LG Karlsruhe v. 21.03.2019 and most recently LG München I v. 29.04.2019) have dealt with the so-called labelling obligation in recent months. The question of whether posts for which influencers do not receive any concrete consideration should also be labelled as advertising is often at the centre of these discussions. Every influencer also advertises for himself with regular postings, which is why an unpaid post is also a business act within the meaning of the UWG. However, it was questionable whether the circumstances could not reveal the advertising nature of the act, so that labelling was not necessary. This was most recently affirmed by the Regional Court Munich I in the case of Cathy Hummels (judgment of 29 April 2019 – 4 HK O 14312/18). Dr. Münker pointed out that the development in this area of unfair competition law in the coming period remains to be seen. However, a new definition of the commercial act could prove to be problematic and could have consequences for the entire UWG.

In the following, Dr. Münker reported on further cases in which the Competition Authority was also involved. For example, the non-transparent calculation of a monthly average price on Check 24 and Verivox violated the PAngV and thus also the UWG.

 

Finally, Dr. Münker went into some projects on a European level. As early as April 2018, the EU Commission adopted the “New Deal for Consumers”, which is intended to ensure more transparency in the network. This includes the so-called Omnibus Directive, which intends to amend four directives, including the UCP Directive. The Directive is intended to create individual legal remedies for consumers. Within the scope of the implementation, however, Germany will have a certain amount of leeway. At this point, Dr. Münker warned in particular against the creation of administrative fines. These were questionable not only with regard to the principles of determination and proportionality, as the UWG works with numerous undefined legal terms. Moreover, it was also doubtful whether the imposition of fines would make it more difficult to punish competition violations. He then promoted the work of the League for International Competition Law (LIDC).

Finally, questions were asked from the audience and the lecture also provided sufficient discussion material for the concluding champagne reception. In response to a question from Prof. Hoeren, Dr. Münker stated that one should not lose sight of the fact that the UWG not only serves consumer protection but also the protection of competitors. In this respect, the competitors in particular were the market guardians of the UWG.

We would like to take this opportunity to thank Dr. Münker once again for his exciting and varied presentation and look forward to our future cooperation.

Lecture of Zhou Lin on Chinese social credit system

On April 8, 2019, Prof. Zhou Lin, Executive Director of the Intellectual Property Center of the Chinese Academy of Social Sciences, presented background information and more profound connections to the Chinese social credit system under the title “On the way to Credit” at the ITM in Münster.

This topic had recently been the subject of extensive press coverage, but now the ITM was able to dispel some of the myths of Chinese scoring systems. After a short and warm welcome by Prof. Dr. Hoeren, Prof. Lin first spoke about the background and the current status quo of the social credit systems in China, later on about their concrete current practice. Finally, he concluded with an insight into Chinese data protection law and gave a short summary.

The idea of evaluating people and companies according to criteria such as trustworthiness, ability to pay, etc., was not a new one and originated in 2002, when China was struggling with so-called triangular debts that paralysed the system. Defaults by companies and unpaid wages created the motivation to introduce binding scoring systems. Under changing governmental supervision, regulations were introduced to regulate the handling of data and subsequently to develop social credit systems. From the “Government Information Disclosure Bill” and the “Regulations on the administration of credit reporting industry” of 2013 to the Network Security Law of 2016 and the E-Commerce Law of 2019, a wide range of changes in data protection and data security have been adopted.

In the second part of the lecture, the two companies Ant-Mark and Baidu were introduced and introduced to their practice of social credit systems. Ant-Mark is comparable to eBay and evaluates the users according to their usage behaviour, for example by the things they buy and how punctual they pay. An individual score is then determined for each person, indicating how likely the rated person’s future good behaviour is. If this score is high enough, many conveniences follow; applying for visas for foreign countries becomes much easier, check-ins or checkouts at hotels are more informal, even bank loans are easier to obtain with a good score. The score indicates how trustworthy a person is considered to be based on the data collected about them. Baidu, on the other hand, could be compared with Google and is responsible for the verification and auditing of companies. Depending on how extensively a company is verified by Baidu, the company receives a better certificate. These range from orange (lowest verification level) to blue (highest verification level). If there are problems with the delivery or quality of ordered goods, buyers can contact Baidu directly: The buyer gets his money back without having to contact the specific company again.

Finally, Prof. Lin reported on the Chinese data protection regulations. In China there are nationally binding rules on how data may be collected, how it must be stored and secured, under which conditions it must be deleted and how it may be used in general. These are detailed regulations for the companies, which are supplemented by internal company rules.

After the lecture, the high interest of the participants was reflected in the many questions that were asked by the audience. Among other things, it was anecdotally discussed that even driving over a crosswalk would be punished with a worse score in the social credit systems. These, in turn, were already being used by foreign embassies themselves to simplify visa traffic.

According to Prof. Lin’s assessment, the forms of the Chinese social credit systems have so far been received very favourably overall and have been perceived as very effective in particular.

Guggenberger to Yale

Much to the regret of the ITM, Prof. Dr. Nikolas Guggenberger, LL.M. (Stanford) will transfer from the University of Münster to Yale Law School, USA, in summer 2019. Professor Guggenberger has been a junior professor of the RWTÜV Foundation at ITM since 2016 and with his research focus on Blockchain, Smart Contracts and Legal Automation he was an important pillar in the competence structure of ITM.

During his time at the ITM, Professor Guggenberger aroused the students’ enthusiasm for future digital topics such as cryptographic currencies or artificial intelligence (AI) in numerous seminars and lectures on IT law. As co-organizer and speaker of the symposium “Blockchain: Opportunities, Law and Regulation”, which took place on November 7, 2017 at the Erbdrostenhof in Münster, he also made a lasting contribution to the dissemination of knowledge about DLT technology. The conference marked the 10th anniversary of the RWTÜV Foundation. Prof. Guggenberger repeatedly published on prominent IT topics, for example on the Network Implementation Act (NetzDG) in the context of social networks. As a member of the International League of Competition Law (LIDC), Professor Guggenberger also contributed to a comprehensive resolution on trademark law, which was passed by a majority of over 100 delegates from more than 25 countries in October 2018 and is directed at the EU and national legislators. In 2018, Professor Guggenberger was also appointed as a founding member of the advisory board “Medien-Digital-Land NRW”.

In summer 2019, Professor Guggenberger will take up a position as Executive Director of the Information Society Project (ISP) at Yale Law School. Within the framework of this project, he will focus on the interface between law and technology, i.e. especially Fintechs, platform regulation, legal automation and the future of private law.

The entire ITM would like to thank Professor Guggenberger for the exciting, instructive and always joyful cooperation over the last three years. His special know-how, especially in the field of DLT technology, and his outstanding legal expertise will always remain in the Institute’s best memory.

The entire ITM wishes Professor Guggenberger only the best for his future in the USA and would be pleased to welcome him to the ITM one day for a longer period of time.